On May 15, 2018, Ms. Burton issued her decision, which upheld the COA’s approval of the severances and variances for 9 Thirty Eighth Street.
Once again, I was out of the country on business, with no access to my computer or support network, when a significant decision was set forth by an adjudicating body.
When I read Ms. Burton’s decision, I felt it was unfair and unfounded. It seemed as though she had ignored the hard numbers presented by the City’s planner and myself and relied instead on the opinion of the builder’s planner, who presented little in the way of numeric evidence. She seemingly ignored the testimony of the City’s Urban Forestry witness, who urged refusal in order to preserve the 3 mature trees at the front of the property – evidence that was unchallenged by the arborist for the builder, who failed to appear.
TLAB Request for Review Process
According Under TLAB Rules, it is possible to appeal a decision made by a TLAB member through what is called a Request for Review. However, anyone who wants to request a review must do so within 30 days of the date the decision was released. In my case, that left me less than 3 weeks to make a case for having Ms. Burton’s decision reviewed.
Review requests must be in the form of an affidavit and describe:
- the reasons for the request;
- the grounds for the request;
- any new evidence supporting the request; and
- any applicable Rules or law supporting the request.
The grounds for such a request could include one of more of the following:
- The TLAB acted outside of its jurisdiction;
- The TLAB member violated the rules of natural justice and procedural fairness;
- The TLAB member made an error of law or fact which would likely have resulted in a different order or decision;
- The TLAB member had been deprived of new evidence which was not available at the time of the Hearing but which would likely have resulted in a different order or decision; or
- The TLAB member may have heard false or misleading evidence from a Person, which was only discovered after the Hearing, but which likely resulted in the order or decision which is the subject of the request for review.
Grounds for Review
My concerns about how Ms. Burton treated the planning and forestry evidence represented, to me, an error of fact, if not an error of law. In addition, I felt deprived of the opportunity to present evidence that nearly 50% of the properties on my block were owned by builders and that the severance at #40 went unchallenged because most of the prescribed notices about the Committee of Adjustment would have gone to builders or tenants who had no interest in opposing such an application. In her decision, Ms. Burton stated, “There was no public opposition to the recent severance at no. 40 as it was not appealed. … The City did not appeal the much less desirable “soldier homes” and lot division at no. 40 across the street from the proposed. That development is now part of the street and neighbourhood fabric.”
By way of commenting on references in the decision to other severance applications in Long Branch, the OMB seemed to tell residents that precedent did not play a role in how they adjudicated subsequent applications. Yet they conveniently remind residents that these approved severances were now “part of the neighbourhood character” and therefore should be considered in evaluating future severance applications.
“Similarly, in 40 37th Street, (Oct. 24, 2017, PL 161248), with the same City witnesses, the panel found that if the application for severance were granted, the lots would be the smallest on the street (para. 32), but that these would not constitute a precedent.” [N.B. this application was approved by the OMB]
“On the issue of ‘precedent’, he [OMB member Krzeczunowicz] observed: ‘It is certainly true that severed lots can subsequently be used to justify further severances because, once divided, they become part of the neighbourhood character.’” 2425456 Ontario Inc. v Toronto (City) OMB (PL160520) heard November 14, 2016 (‘2425456’) re 30 Thirty Sixth Street.
To review exactly how the hearing was conducted, I first sought out transcripts from the hearing, but found that TLAB did not prepare transcripts. They did, however, have audio recordings, so I ordered copies of the recordings for both days of the hearing.
The audio recordings were close to being useless. I believe that, while microphones were available in the hearing room, either some were not turned on or some people were not speaking into the microphones because the audio was very faint. I was able to improve the sound quality (primarily the volume) by running the recordings through sound editing software, but not everyone would have the knowledge or expertise to do this. I also used the sound editing software to annotate specific sections in the recordings.
I had to listen to the entire two days of testimony and arguments several times to grasp the nuances of what was said and to document specific passages accurately in my Review Request.
In her rationale, Ms. Burton felt the builder’s expert planning witness was more credible than what was presented by the City’s planner and two residents – myself and David Godley, a long-time Long Branch resident and retired urban planner. She dismissed the City’s planning evidence saying that they defined the neighbourhood as a small stretch of homes along one side of Thirty Eighth Street – a pretty clear misinterpretation of what was presented to her. She also seemed to dismiss the hard numbers in the analysis presented by the residents which showed that what was proposed do not conform to the existing character of the neighbourhood.
The truth is that the City planner and the residents presented much the same data, looking not only at Thirty Eighth Street, but also a much bigger study area covering Lake Promenade to Lakeshore Boulevard and from Thirty Sixth Street to Fortieth Street – not just one side of Thirty Eighth Street.
A deeper look at the data show that narrower lots are mainly found close to Lakeshore Boulevard while lots closer to Lake Promenade, where 9 Thirty Eighth is located, tended to be primarily 50-foot lots. This was presented during the TLAB hearing, but there is no reference to this in Ms. Burton’s decision.
The following are three slides from my presentation that, I think, show a much different picture than what the builder’s planner painted.
The first slide shows that 50 feet is the prevailing frontage in the neighbourhood study area, that represented over 300 properties. The second slide shows the same pattern on Thirty Eighth Street. The third slide shows the density of the proposed new homes compared to the existing homes on Thirty Eighth Street, clearly showing what was proposed did not reflect what was already on the street and that the severance at no. 40 Thirty Eight, which the builder’s lawyer repeatedly referred to, was even further removed from the pattern for the street.
Ms. Burton also characterized this situation as being different from a similar TLAB hearing on Thirty Sixth Street (38 Thirty Sixth), where I had used the exact same data and presentation format to lead to a refusal of a proposal to sever that property.
Submitting the Request
I assembled my case and exhibits. I wrote up my case in the form of a business letter, expressing my concerns and grounds for the review. I had to take all of this to a lawyer to have it notarized for submission to TLAB. I told the lawyer I was supposed to submit my materials in the form of an affidavit and asked if my business letter format qualified as an affidavit. She replied, “It will be once I sign it.”
I then had to scan all the hard copies into PDF documents – the format TLAB requires for submission – so I could submit by email. I phoned the TLAB offices to alert them that I would be sending a Request for Review and confirmed the date I proposed for submission was acceptable. TLAB Rules say that Requests for Review must be submitted within 30 days of the date of the decision, though it was not clear when the 30 days started – the date of the decision or the day after (it was the latter).
I emailed my completed Request for Review form and affidavit to TLAB on June 15, 2018, copying the lawyers for the City and for the builder which, though not stated explicitly in TLAB’s Rule, seemed to me to be the appropriate protocol.
One problem cropped up when I made my submission. Among the evidence I was submitting were the recordings of the TLAB hearing and the video recording of the Committee of Adjustment hearing. TLAB had no standards for audio or video evidence and, in any event, the files were very large and hard to send via email. I offered to create a zip file to compress the files and send them in a single folder, but staff at TLAB did not know how to handle zip files. I also asked if I could submit the audio and video files via a shared folder so TLAB staff could download from there.
I finally managed to get the video file to TLAB but they informed me they could not upload to the case file because the case files did not support audio or video evidence.
I believe (though I could be mistaken) this was TLAB’s first Request for Review under its Rules of Practice and Procedure.
The Review Decision
After June 20th, I heard nothing from TLAB to verify that my Request for Review had been accepted. Then, on August 3rd, a decision came down from the Chair of TLAB, Mr. Ian Lord, overturning Ms. Burton’s decision and refusing permission to sever the property.
I felt great relief from this decision. It seemed like someone finally listened to the residents.
This, unfortunately, is not the end of the story. Tune in next week for the next instalment.